December 2016 – Page 9 – Electronic Discovery Law

Lexpath Techs. Holdings, Inc., N0. 13-cv-5379-PGS-LHG, 2016 WL 4544344 (D.N.J. Aug. 30, 2016)

Dec 01 2016

Key Insight: Where Defendant used CCleaner on his work laptop and failed to produce three thumb drives, court concluded that the relevance prong of its analysis was satisfied (noting Plaintiff?s lack of credibility), that there was a duty to preserve, and that information was actually suppressed or withheld and, citing Rule 37(e,) imposed a presumptive adverse inference upon the determination that the loss was intentional, based on the timing of the spoliation (shortly following receipt of a cease and desist letter, including Plaintiff?s potential claims), among other things

Nature of Case: Claims arising from employee’s departure and start of competing business

Electronic Data Involved: ESI

Feist v Paxfire, Inc., No. 11-CV-5436 (LGS) (RLE), 2016 WL 4540830 (S.D.N.Y. Aug. 29, 2016)

Dec 01 2016

Key Insight: Where Plaintiff?s internet browsing history was highly relevant to her claims and to establish damages but was lost as the result of her computer crashing and the use of a cleaning program after the duty to preserve arose, the court did not conclude that Plaintiff acted intentionally to deprive Defendant of the information (citing a lack of evidence to dispute Plaintiff?s claim that she regularly cleaned her hard drives prior to litigation) but did find that sanctions were warranted to cure prejudice and indicated that the court would ?presume that the absence of any cookies is unfavorable to Feist in that she cannot attribute a specific number of redirections to Paxfire? and precluded Feist from arguing in favor of statutory damages for specific internet searches or proffering evidence of specific violations

Nature of Case: Wiretap Act violations

Electronic Data Involved: Internet history

Mazzei v. Money Store, —Fed. Appx.—, 2016 WL 3902256 (2d Cir. July 15, 2016)

Dec 01 2016

Key Insight: District court did not abuse discretion in declining to impose an adverse inference for failure to preserve ESI in an accessible format and instead awarding costs and attorneys fees where the at issue system “contained only ‘tangential information'” and where Plaintiff failed to seek discovery from other sources; Circuit court’s analysis noted recently amended Rule 37(e)’s required finding of intent to impose an adverse inference and that the District Court “specifically found that defendants did not act with such intent”

Nature of Case: Class action: breach of contract

Electronic Data Involved: ESI in third party custody but under control of defendants

Wagoner v. Lewis Gale Med. Ctr., LLC, No. 7:15cv570, 2016 WL 3893135 (W.D. Va. July 13, 2016)

Dec 01 2016

Key Insight: Court granted motion to compel additional searching of Defendant?s computer systems and declined to order cost shifting despite Defendant?s claim that its inability to conduct a global search of its systems and resulting need to rely on a vendor rendered the search disproportional to the needs of the case where the court reasoned that Defendant had not carried its burden to show the information was inaccessible (?i.e., must be restored, de-fragmented, or reconstructed) and instead relied upon the expense of contracting with an outside vendor and that the necessary expense was the result of Defendant?s choice to use a system that did not preserve emails in a readily searchable format; ?Proportionality consists of more than whether the particular discovery method is expensive.?

Nature of Case: Employment litigation

Electronic Data Involved: ESI, including email

Wai Feng Trading Co. v. Quick Fitting, Inc., Nos. 13-33S, 13-56S, 2016 WL 4184014 (D.R.I. June 14, 2016)

Dec 01 2016

Key Insight: Following several extensions of discovery, court addressed motion to compel production of documents and email in native format and, noting that a particular format was not requested and that the parties? had consistently produced documents in hard copy or in searchable PDF format, found that only two documents ?arguably might contain metadata that could be relevant? and ordered that those documents be produced, but shifted the costs to the requesting party

Nature of Case: Theft of intellectual property, breach of contract

Electronic Data Involved: Emails, database, ESI

BancPass, Inc. v. Highway Toll Admin., LLC, No. A-14-CV-1062-SS, 2016 WL 4031417 (W.D. Tex. July 26, 2016)

Dec 01 2016

Key Insight: Where, in email, the parties agreed to use certain search terms and one party produced all such hits except those deemed privileged while the other produced only relevant documents, court indicated that if it were to construe the emails as a binding contract, Defendant would be in breach, but found that it was not a contract and reasoned that there was no evidence that relevant documents were withheld nor that additional searches would produce more responsive documents, and thus denied Plaintiff?s motion to compel

Nature of Case: Defamation

Electronic Data Involved: ESI identified by agreed search terms

Botey v. Green, No. 3:12-CV-01520, 2016 WL 1337665 (M.D. Pa. April 4, 2016)

Dec 01 2016

Key Insight: In this case, the court granted in part Plaintiff?s motion for sanctions where ESI was automatically destroyed despite a duty to preserve as the result of Defendant?s employees? failure to forward Plaintiff?s notice of litigation and request for preservation to corporate headquarters. Declining to impose an adverse inference, the court ordered that Defendants would not be allowed to rely on the destroyed records or other evidence designed to show their contents.

Nature of Case: Claims arising from traffic accident

Electronic Data Involved: ESI

Navajo Nation v. Urban Outfitters, No. 12cv0195, 2015 WL 11089521(D.N.M. June 10, 2016)

Dec 01 2016

Key Insight: Court compelled limited production from backup tapes and declined to shift costs despite Defendant?s production of archived emails where Defendant failed to turn off its auto-purge and the purged emails would not, therefore, be located in the archive and where Defendant failed to specify the alleged burden and expense and Plaintiff agreed to limit their request; Defendant was required to search its SharePoint site where it utilized the site to communicate with employees, where many documents referred to the SharePoint, and where Defendant did not claim that the information was not reasonably accessible

Nature of Case: Trademark

Electronic Data Involved: Backup tapes, SharePoint

Sharma v. BMW N. Amer. LLC, No. 13-cv-02274-MMC (KAW), 2016 WL 1019668 (N.D. Cal. Mar. 15, 2016)

Dec 01 2016

Key Insight: Court compelled production of requested document retention policies where it determined that the policies were relevant and ?may help Plaintiffs to determine the universe of responsive documents and evaluate any gaps in document production? and that the production was proportional to the needs of the case where the modest number of pages at issue rendered the burden of production ?likely minimal, while the benefit of such information would be substantial?

Nature of Case: Putative class action re: allegedly defective vehicles

Electronic Data Involved: Document retention policies

In re Subpoena Am. Nurses Assoc., Nos. 15-1481, 15-1803, 2016 WL 1381352 (4th Cir. Apr. 7, 2016)

Dec 01 2016

Key Insight: Circuit Court affirmed District Court?s order shifting a third party?s attorney?s fees ?that [were] necessary to a discovery proceeding under Rule 45,? but declined to shift attorney?s fees incurred in furtherance of the motion to shift expenses where such fees were not ?not necessary to [the third party?s] compliance with the discovery order as they were incurred after discovery was completed and as a result of [the third party?s] effort to recover fees, rather than in an effort to produce discoverable material?; Circuit Court also affirmed order shifting expenses for e-Discovery services where the Magistrate Judge found that ?(1) ANA advised Appellants that producing the requested discovery would entail significant expense; (2) Appellants were dilatory in communicating with ANA after the district court ordered discovery; and (3) Appellants changed the scope of the requested discovery, increasing BIA?s charges.?

Nature of Case: Third party subpoena/ cost shifting / taxable costs

Electronic Data Involved: ESI

Archive - December 2016